Richard Wolfram, Esq.

Richard Wolfram is an independent U.S. lawyer based in New York City.  His practice, launched in 2005, focuses on antitrust counseling and litigation on behalf of corporations, professional organizations and public advocacy entities.        

Drawing on his 17 years of experience in antitrust and more than 26 years in commercial litigation, Mr. Wolfram focuses on helping each client achieve its objectives through effective, cost-efficient counseling and/or litigation. 

The constructive use of antitrust to achieve these ends often requires 'problem solving' -- taking apart a client's concrete issues, identifying the antitrust component and using this legal tool to the client's advantage, whether as a plaintiff, defendant, amicus (friend of the court) or interested observer.

Technology and business practices continue to undergo rapid transformation.  To address today's economic and commercial realities, the effective advocate can use the law creatively, when necessary,  to persuade courts and other enforcers to embrace somewhat novel applications of established principles, provided he or she respects the fundamentals and thoroughly marshals the supporting facts.

Mr. Wolfram teams up with other antitrust  lawyers, as necessary, and is also called upon by firms seeking antitrust expertise for their clients.  Responsiveness and depth of experience and expertise are highly valued by clients, across a range of antitrust issues, and a lean practice model with flexibility for collaboration helps address these needs. 

 -- These are some of the key components of Mr. Wolfram's antitrust 'toolbox'.

Antitrust addresses both single-firm and joint conduct.  Across these categories, Mr Wolfram advises and litigates on:

• mergers and acquisitions;
• joint ventures;
• monopolization;
• price-fixing, market division and concerted refusals to deal/boycotts;
• distribution (e.g., exclusive dealing, tying and resale price maintenance);
• price discrimination;
• standard setting and patent pools;
• intellectual property licensing and related antitrust/intellectual property issues such as patent misuse; and
• international antitrust.

Antitrust compliance review in these areas is also a key component of his counseling.

Mr. Wolfram has published widely on a number of antitrust topics in U.S. and foreign publications since 1995 and has guest-lectured and spoken at conferences on antitrust.  The range and depth of his writing and speaking are an important facet of his ability to deliver results for his clients. 

He has practiced predominantly in antitrust since 1995, including nine years at Clifford Chance/Rogers & Wells in New York City.  From 1985 to 1995, Mr. Wolfram worked as an associate in commercial litigation at several large and medium-sized international firms in New York.

More information about Mr. Wolfram's practice, including representative matters, related experience and educational background, a bibliography and contact information, is available below.  

RECENT NEWS:

April 5, 2013.  Public Comment to DOJ and FTC on Patent Assertion Entities:

• Submitted in response to request for public comments following Dec. 2012 DOJ-FTC Hearing on Patent Assertion Entities, available at http://www.ftc.gov/os/comments/pae/pae-0066.pdf.  Also adapted for publication in Antitrust Connect, Wolters Kluwer antitrust blog (May 8, 2013) (http://www.antitrustconnect.com).  

March 27, 2012.  Panelist, "Three Faces of Frand:  The Evolving Understanding of Standards Essential Patents," ABA webinar, Science & Technology and Intellectual Property Sections:

• Teleconference discussion of FRAND licensing terms for standards essential patents in context of Google-Motorola Mobility and other recent acquisitions of IP portfolios, EC and DOJ review, and competitive effects of strategic uses of IP rights.  Audio available upon request.

Jan. 24, 2012.  Connecticut AG Announces Latest Settlement with DRAM Manufacturers - (RW press comment):

• On Janurary 23rd, the Connecticut Attorney General announced a $175,000 settlement with four manufacturers of dynamic random access memory for alleged price-fixing.  This is just the latest recovery from long-running federal, state and private class action multi-enforcement efforts regarding alleged price-fixing by a number of DRAM manufacturers (2002 DOJ action -- $730M; attorneys general multistate settlement in 2002 -- $173M; private class actions on behalf of indirect purchasers).
• RW was quoted in an article in Global Competition Review on the settlement:  "Richard Wolfram, an independent antitrust practitioner in New York, says multiple enforcers seeking duplicative recovery for the same conduct is increasingly common in the US.  'We've seen this play out in cases against Mylan, Nine West, Microsoft and vitamins manufacturers, among many others,' he says.  'Judge Richard Posner of the Seventh Circuit has called this 'the cluster bomb effect', but whatever the criticisms over judicial inefficiency and duplicative recoveries, it has become the norm over the last 20 years or so'."  Global Competition Review, online news article, 1/24/12.   

Jan. 17, 2012.  On the Radar:  Massive Credit Card Interchange Fee Multidistrict Litigation - (RW press comment): 

• A multidistrict credit card interchange fee antitrust litigation (In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, E.D.N.Y.) is finally beginning to capture media attention, more than six years after it was filed -- and none too soon for a case with potential liability estimated at upwards of $100B.  The case pits a putative class of some five million retail merchants and additional opt-out individual plaintiffs against Visa, Mastercard and a handful of "issuing" (cardholders') banks and "acquiring" (merchants') banks.  Plaintiffs allege that the defendants violated antitrust laws by agreeing to fix anticompetitive rates for interchange fees paid by merchants on credit card transactions.  One of the key issues before the court on pending motions for summary judgment is the plaintiffs' standing to sue for the alleged overcharges, under federal antitrust doctrine which denies standing to indirect purchasers except in limited circumstances.  RW was quoted in a recent article in Global Competition Review evaluating possible pressure on the defendants to settle the long-running, outsized case, and focused on the question of standing:  "Richard Wolfram, an independent antitrust practitioner in New York, says the case is highly complex in many aspects, but one significant problem for both sides is the issue of whether the alleged overcharges can be categorised as direct or indirect antitrust injuries suffered by the plaintiffs. This is important because under the federal antitrust Illinois Brick doctrine, only direct purchasers may recover damages for overcharges.  Wolfram continues:  'For example, the defendants say the merchants don't have standing to sue as direct purchasers as they don't pay [the interchange fees] directly.  Instead, as a contractual matter, the merchants' banks pay the fees to the cardholders' banks and recoup the sum from the merchants.'  Meanwhile, 'the plaintiffs say the economic reality should trump the formal contractual relationship in this case', he says."  Global Competition Review online news article, Jan. 17, 2012.   

Nov. 17, 2011.  Jury Rejects $4B RDRAM Antitrust Suit by Rambus - (RW press comment):

• A California state court jury rejected claims by Rambus that Hynix and Micron fixed prices and conspired to prevent Rambus's RDRAM memory technology from becoming an industry standard, causing Rambus to lose some $4B in royalties (or $12B after antitrust trebling).  Rambus filed suit in 2004; the jury deliberated for eight weeks following some 15 weeks of trial.  RW quoted in Global Competition Review's daily online news regarding the verdict.  For persuasive explanation for Rambus's defeat, see also http://blogs.reuters.com/alison-frankel/2011/11/18/how-the-ghost-riders-theory-won-rambus-trial/:  'yes, there was price-fixing, defendants acknowledged, but not this price-fixing and Rambus's technology failed because of its own problems'.          

April 28, 2011.  IOM Urges Reform of Standard Setting in Clinical Practice Guidelines:

• At the end of March, the influential Institute of Medicine of the National Academies in Washington, D.C. proposed standards for the development of clinical practice guidelines (CPGs) in medicine and issued an accompanying 250-page report calling for significant reform in the development of CPGs.  Clinical practice guidelines and evidence-based medicine are taking center stage in health care practice and policy and the IOM's call for reform is likely to reverberate throughout government and the private sector.   As an example of the need for CPG reform, the IOM prominently cites an investigation and settlement in 2008 by the Connecticut Attorney General regarding guidelines developed by the Infectious Diseases Society of America (IDSA) for the diagnosis and treatment of Lyme disease.  (As antitrust counsel to various complainants in the long-running matter, RW presented, with co-counsel, a putative antitrust case to the AG alleging process abuse in the development of the guidelines -- as standards -- by financially interested panelists, and implementation of the guidelines by the IDSA, with resulting harm to competition for treatment modalities and antitrust injury.  See below.)  The IOM's call for reform highlights the singular importance of CPG development in health care and anticipates, by reference to the Lyme investigation, the potential antitrust implications of such activity.  For a short summary and comment on the IOM's proposed standards and report and its discussion of the Lyme investigation as emblematic of the need for reform, click here.

Jan. 6, 2011.  Article on 'Most Favored Nations' Clauses:

•  "'Most Favored Nations' Clauses under the Spotlight:  U.S. v. Blue Cross Blue Shield of Michigan -- When Might Otherwise Competitively Neutral or Procompetitive MFN Clauses Violate the Antitrust Laws?", Wolters Kluwer Law & Business, Antitrust Blog, http://antitrustconnect.com.

Nov. 15, 2010.  Litigation -- IP/Antitrust:

• As member of antitrust/litigation team, helped defeat motion to dismiss antitrust and patent misuse counterclaims and affirmative defenses in federal district court on behalf of defendant ‘aggregator’ of flash memory technology products against patentee claiming infringement.  Defendant alleges that plaintiff’s licensing demands violate federal and state antitrust laws and constitute patent misuse.  Order denying motion to dismiss, W.D. of Wisconsin, 11/15/10 (26 page opinion).

 Oct. 13, 2010.  ABA teleseminar:

• Organizer/co-moderator/ panelist, "The Draft EU Guidelines on Standard Setting," ABA Science and Technology and Antitrust Sections. 

July 13, 2010.  Litigation -- Monopolization, Anticompetitive Agreements:

• As antitrust counsel on team acting on behalf of plaintiff BanxCorp, helped defeat defendant Bankrate’s third and final motion to dismiss claims for exclusive dealing, price fixing, predatory pricing and monopolization under federal and state antitrust law.  Order denying motion to dismiss, D. of New Jersey, 7/13/10. 

Aug. 2010.  Co-author, article on application of antitrust standard setting principles to clinical practice guidelines:

• "Evidence-Based Clinical Guidelines:  An Rx for Better Quality, an Opportunity for Exclusionary Conduct, or a Little of Both," Connections, Am. Health Lwyrs Assoc'n 

May, June, 2010.  American Needle v. NFL (S.Ct.) and Deutscher Tennis Bund v. ATP Tour Inc. (3rd Circuit):

• Can the members of sports leagues and associations, like partners in any joint venture, be deemed to agree with each other regarding their joint activities, within the meaning of Section 1, or do they collectively constitute a single entity or enterprise, such that they are immune from liability under Section 1?  The much anticipated decision by the Court in American Needle articulated a 'new' test that is in fact consistent with and thus does not upset  precedent on the question:  their conduct will typically be reviewed under Section 1 under the rule of reason.  Meanwhile -- in a case in which RW represented a foreign national tennis federation as an unnamed defendant -- the Third Circuit explicitly anticipated 'single entity' guidance from the Court regarding the legality under Section 1 of decisions reorganizing ATP tournament play.  But then, one month after American Needle came down, the Third Circuit dodged the question of whether the ATP's decisions constitute concerted activity or instead  conduct by a single entity.  For futher discussion, click here.

January 6, 2010.  Nokia v. Apple -- Spotlight on ETSI/FRAND reciprocity provision:

• Nokia sued Apple in federal district court in October '09 for infringement of wireless intellectual property rights; Apple counterclaimed in December, alleging patent 'holdup' in wireless technology.  (The backdrop is Nokia's alleged commercial missteps in allowing Apple to establish firm lead in smartphone sector.)  Nokia was obligated by its participation agreement with the European Telecommuni-cations Standards Institute (ETSI) to offer licenses to its ETSI-standardized wireless technology on FRAND ("fair, reasonable and non-discriminatory") terms (as generally required by standards setting organizations/SSOs) -- which it allegedly did to 39 other licensees.  From Apple, however, Nokia exceptionally sought 'grantback' licenses -- to Apple's smartphone technology.  Arguably supporting Nokia's demand is an ETSI provision which by its terms conditions an ETSI licensor's FRAND licensing obligation on a right of reciprocity from its licensee.  The meaning and effect of this reciprocity provision, in the licensing rules of one of the world's most important SSOs for wireless technology, are untested in U.S. courts.  See 'Friends and Clients' e-mail, more detailed comment, and articles in Global Competition Review and Swedish business daily Dagens Industri, quoting RW.   

Oct. 23, 2009.  Antitrust developments in resale price maintenance:

• Assistant Attorney General Christine Varney recently proposed a structured rule of reason for RPM arragements under federal law.  Taking her cue from the Supreme Court's invitation to lower courts in Leegin -- which overturned the treatment of RPM as per se illegal --'to devise rules and even presumptions' for applying the rule of reason, AAG Varney provides a compelling, straightforward and manageable model for balancing procompetitive and anticompetitive aspects of RPM -- one which may prove highly influential to advocates and courts. For short RW summary, see "AAG Varney Proposes a Structured Rule of Reason for RPM under Leegin -- A Summary and Appraisal."     

Oct. 14-15, 2009.  Meetings with FTC and DOJ on standards and open source: 

• Participated in briefings with FTC and DOJ officials as 'delegate'/member of the Committee on Standards and Open Source of the American Intellectual Propertly Law Association; other delegates included in-house counsel at several major high-tech companies and other private attorneys.  RW comments focused on current antitrust and 'equitable estoppel' issues in this area. 

July 30, 2009.  Unprecedented  hearing by reconstituted guidelines panel on Lyme disease -- pursuant to Connecticut Attorney General's 18-month antitrust investigation and May 2008 settlement regarding the development of clinical guidelines on Lyme disease by the Infectious Diseases Society of America (IDSA) -- followed by issuance of final report by panel in spring 2010:

• On July 30, 2009, a reconstituted IDSA Lyme guidelines panel held a full-day hearing in Washington, D.C., as provided by the settlement, to evaluate the science and determine whether or not it supports the current guidelines.  Sixteen scientists and doctors and two patient advocates made presentations to the nine-member panel, which was charged with weighing the evidence and issuing a report.  The hearing was broadcast live over the internet and was available for viewing on the IDSA's website (go to http://www.idsociety.org/Content.aspx?id=15026).  See press:   http://www.greenwichtime.com/ci_12955324?IADID=Search-www.greenwichtime.com-www.greenwichtime.com.   The hearing was the culmination of more than three years of antitrust and other advocacy by RW and a colleague on behalf of various patient and physician associations and a diagnostics laboratory, which likened the guideline development process to standard setting.and focused on process integrity and commercial conflicts of interest on the part of the previous IDSA panel.  See Practice and Articles & Commentary, below; see also RW June/09 letter (followed by reply) to the editor of the Journal of the American Medical Association responding to Feb./09 Commentary in JAMA criticizing the AG's intervention.  The review and voting process, although carried out internally under the supervision of the IDSA, were nonethless subject to some AG oversight, and offer a glimpse into some of the difficult steps of implementing evidence-based medicine in a manner consistent with the law.  In the spring of 2010 the reconstituted panel issued its report, finding essentially no reason to revise the guidelines in light of the evidence presented at the hearing.  For more details and comment on the need for guidance on the appropriate evidentiary standard when formulating or reviewing clincal practice guidelines, click here.  

July 16,2009.  Google/antitrust:

• Quoted in Global Competition Review daily online news regarding Google's offering of 'free' services -- antitrust implications, if any, and DOJ scrutiny of Google's conduct.

July 15, 2009.  Article on Standard setting/Rambus:

• "Down the rabbit hole with Rambus"  (see Articles & Publications) -- feature article in  July 2009 issue of Global Competition Review magazine (http://www.globalcompetitionreview.com/features/issues/current/).  

June 2, 2009.  Effects of GM bankruptcy on viability of Saab:

• Quoted in Dagens Industri (Swedish business daily).

 Feb. 23, 2009.  Standard Setting - Rambus:

• Quoted in GCR daily online news regarding Supreme Court's denial of certiorari in Rambus v. FTC.  (RW co-authored one of seven amicus briefs in support of FTC's unsuccessful petition for Supreme Court review.)